107 Iowa 641 | Iowa | 1899
I. Section 4292 of the Oode of 1873 is as follows: “When an-indictment is found at the instance of a private prosecutor, the following must be added to the endorsement required by the preceding section, 'Found at the instance of’ (here state the name of the person), and in such case, if the prosecution fails, the court trying the cause may award costs against the private prosecutor, if satisfied, from all the circumstances, that the prosecution was malicious or without probable cause.” Section 5275 of the present Code is the same as that quoted above. The indictment against Charles McAllister was not indorsed as found at the instance of the private prosecutor. Appellant insists that, not being so indorsed, the court had no power to render judgment against him; also' that, even with or without such indorsement, if the court had such power, it could not be exercised without notice to appellant, and giving him his day in court in which to defend himself. We regret that the case is submitted without full argument, as the construction of this statute in these respects is directly presented to this court for the first time. Chapter, 24, Laws 1852, approved January 18, 1853, is as follows: “That in all prosecutions for a violation of any of the penal laws in any of the courts of this state, said prosecution being at the instance of a ju’ivate prosecutor, the court trying said cause, if said prosecution fails, may award costs against said private prosecutor if, from the circumstances of the case, said court is satisfied the prosecution was malicious or without ju’obable cause. That when an indictment is found at the instance of a private prosecutor, the foreman of the grand jury shall endorse thereon the name of the person at whose instance the same was found.” In State v. Donnell, 11 Iowa, 452, — a case arising under this statute, — the charge was ignored by the grand jury, and “the court, being satisfied from the circumstances in the case that the prosecution was set on foot by one D. Silversmith and Lewis Toppe without probable cause, directed that the costs of the prosecution, assessed at sixty-